Coronavirus Act 2020: Named Person - witnessing of signatures

Introduction

Due to the coronavirus outbreak there have been difficulties arranging for a prescribed person to formally witness the named person ‘docket’, as required by s250(2A)(c) of the Mental Health (Care and Treatment)(Scotland) Act 2003. The “docket” must be completed in writing, and signed. If the docket is not witnessed then it affects the validity of the named person nomination.

The requirement for a witness is becoming problematic as there have been changes to work practices to reflect the impact of COVID-19 such as physical distancing.

Temporary change

The Coronavirus (S) (No.2) Act (“the Act”) temporarily removes the requirement for a nominated person to have their signature witnessed by a prescribed person when they agree to become a named person.

Scottish Ministers commenced this temporary provision on 27 May 2020.

What this means in practice

The patient

There are no changes to the process for the patient (nominator). The safeguards around the nomination process are unaffected and in particular, nominations continue to have to be made in writing. The patient will still require to have their signature witnessed by a prescribed person. The prescribed person in witnessing the signature will be certifying that they believe that the nominator understands the effect of their nomination and that the nominator has not been subject to any undue influence in making the nomination.

The proposed named person

The change only affects the process for the proposed named person (nominee). The nominee is still required to sign “the docket” when agreeing to take on the role as named person. However, as of 27 May 2020 there will no longer be a requirement for a prescribed person to act as a witness to the nominees’ signature.

Who a prescribed person is

The classes of prescribed person are set out in the Mental Health (Patient Representation) (Prescribed Persons) (Scotland) Regulations 2017 (S.S.I.2017/175). They include:

• independent advocates
• medical practitioners
• arts therapists, dieticians, occupational therapists, physiotherapists, practitioner psychologists and speech and language therapists
• people employed in the provision of, or managing the provision of, a care service
• registered nurses
• social workers
• solicitors

Patient safeguards

The temporary change will ensure that the patient safeguard to have a named person, should they choose to do so, remains effective during the coronavirus outbreak and will minimise any delays to the nomination process being completed effectively.

Current position (December 2022)

This temporary provision was made permanent through the COVID (Recovery & Reform)(Scotland) Act 2022 on 1 October 2022

The nominated person’s signature will no longer require to be witnessed by a prescribed person. This replicates permanently the temporary modification made by paragraph 15 of schedule 1 of the Coronavirus (Scotland) (No.2) Act 2020.